Note: Copies of this Congressional testimony by Eagle Forum President Phyllis
Schlafly were distributed to conservative groups on Capitol Hill in May,
1997.

STATEMENT BY PHYLLIS SCHLAFLY
TO THE SUBCOMMITTEE ON COURTS AND INTELLECTUAL PROPERTY
OF THE HOUSE COMMITTEE ON THE JUDICIARY
March 20, 1997

My name is Phyllis Schlafly. I'm president of Eagle Forum, a national
volunteer organization concerned with public policymaking on many issues,
including constitutional issues. Thank you for inviting me to present our
views on H.R. 695 and cryptography. Our home page on the Internet is at
www.eagleforum.org.

Advances in computer technology have been wonderful in so many ways, but
they are also constantly eroding our personal privacy. Massive databases
are now keeping track of our phone numbers, addresses, income, credit records,
medical histories, and purchases. With everything connected to the Internet,
the only way to keep our information private is to avoid computers (which
is impossible), or to encrypt it.

Encryption should be recognized as a fundamental right. I believe that our
right to speak in private (whether in English, a foreign language, or in
code) is protected by the First Amendment to the U.S. Constitution, and
that the government cannot regulate or limit that right without seriously
eroding our fundamental civil liberties.

I thank Congressman Goodlatte and the other sponsors of this bill for recognizing
that our rights of free speech are endangered by the Justice Department.
It is a sad day to think that Americans might need permission from Congress
to have a private conversation! It should not be necessary for Congress
to pass a law declaring that encryption is lawful.

The problem is that Attorney General Janet Reno and FBI Director Louis Freeh
are giving speeches advocating the regulation of cryptography and giving
the government access to our computer messages. They repeatedly demand that
the government be able to get a key to our telephones and computer systems.

Mr. Freeh even says that encryption poses a "threat to public safety."
On the contrary, the threat to public safety comes from the lack of encryption
and the demands of Justice Department officials to have a key so they can
read our private messages.

Are we worried about the Justice Department abusing its power to eavesdrop
on our computer messages? You bet we are. The misbehavior of the FBI in
so many areas, and the coverups that followed, have been shocking to Americans
who like to support law-and-order. The FBI abuses are such that, to give
the FBI access to our computer messages would be a long, dangerous step
toward making America a totalitarian state.

We are also very concerned that a ban on "mandatory key escrow"
might not preclude the government from other coercive key escrow plans,
deceptively called "voluntary." The Federal Government is notorious
for using all sorts of weapons, including intimidation and funding incentives,
to make something mandatory while they are loudly proclaiming it to be "voluntary."
The right of the individual to privacy would be meaningless if the telephone
companies "voluntarily" agree to key escrow.

I believe it is not only important to recognize that encryption is a right
of free speech, but also that encryption is a good thing, not a bad thing
or a criminal thing. We are very opposed to the criminal penalties in this
bill. It is doubtful that Congress even has the constitutional authority
to criminalize encryption.

Let's take an example. It is, of course, lawful to use opaque envelopes.
Would it make sense to legislate five years in federal prison for using
opaque envelopes in connection with a crime? Would it stop the problem of
bad checks if we were all forced to mail our checks in transparent envelopes?
We should punish criminals for actual crimes, not for auxiliary activities
that are entirely lawful and proper. We don't want to move toward a nation
in which any state crime becomes a federal felony merely because a computer,
telephone or other electronic device is involved.

We object strenuously to the current trend toward federalizing crimes. This
is offensive to our constitutional system of federalism. Considering the
present status of judicial activism, Congress should be removing jurisdiction
from the federal courts, not adding to their jurisdiction.

We object to the implication that encryption is somehow suspect. Strong
encryption is one of the greatest achievements of the information age. It
means we will be able to talk on the telephone with assurance that no one
is eavesdropping. It means we can exchange E-mail, make purchases, and invest
our money in privacy, because snoops cannot decode data traffic even if
they gain access to a network.

It should be the policy of the United States to encourage wide dissemination
of strong encryption technology. I thank the sponsors of H.R. 695 for recognizing
the vital importance to individuals of unrestricted cryptography, and I
hope the bill will be amended to remove criminal deterrents to using cryptography.

Neither Phyllis Schlafly nor Eagle Forum, nationally or any of our chapters,
has ever received any federal funding.

Eagle Forum is a national conservative, pro-family organization with 80,000
members and chapters in every state. Mrs. Schlafly is the author of 16 books,
the monthly Phyllis Schlafly Report, a syndicated columnist, and her radio
commentaries are heard on more than 300 stations. A graduate of Washington
University, Harvard University, and Washington University Law School, she
is admitted to the practice of law in Missouri, Illinois and the District
of Columbia.